Exhibit 4.10
CONSULTING SERVICES AGREEMENT
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The following confirms the Agreement (the "Agreement") between Xxxxx &
Associates, a limited liability corporation ("Consultant"), and Medix Resources,
Inc., a Delaware corporation (the "Company"), with respect to consulting
services to the Company:
1. Consultant understands that the Company possesses and will possess
Proprietary Information that is important to its business. For purposes
of this Agreement, "Proprietary Information" is information that was or
will be developed, created, or discovered by or on behalf of the Company,
or which became or will become known by, or was or is conveyed to the
Company (including, without limitation, "Results" as defined below),
which has commercial value in the Company's business. "Proprietary
Information" includes, but is not limited to, information about
operations and maintenance, circuits, mask works, layouts, algorithms,
trade secrets, computer programs, design, technology, ideas, know-how,
processes, formulas, compositions, data, techniques, improvements,
inventions (whether patentable or not), works of authorship, business and
product development plans, customers and other information concerning the
Company's actual or anticipated business, research or development, or
which is received in confidence by or for the Company from any other
person. Consultant understands that the consulting arrangement creates a
relationship of confidence and trust between Consultant and the Company
with regard to Proprietary Information.
2. Consultant understands the Company possesses or will possess "Company
Materials" which are important to its business. For purposes of this
Agreement, "Company Materials" are documents or other media or tangible
items that contain or embody Proprietary Information or any other
information concerning the business, operations or plans of the Company,
whether such documents have been prepared by Consultant or by others.
"Company Materials" include, but are not limited to, blueprints,
drawings, photographs, charts, graphs, notebooks, customer lists,
computer disks, tapes or printouts, sound recordings and other printed,
typewritten or handwritten documents, as well as samples, prototypes,
models, products and the like.
3. In consideration of the mutual covenants and agreements hereafter set
forth, the parties agree as follows:
a. Consultant's start date will be Oct. 1, 2002. This Agreement will
terminate on March 31, 2003 and be renewable in six-month periods
with the consent of both parties, unless terminated earlier pursuant
to Paragraph 4 of this Agreement.
b. Consultant agrees to render consulting services ("Services") to the
Company for the term of this Agreement. Consultant's duties shall
include, but are not limited to, those duties set forth in Exhibit A
hereto and such other duties as the Company may from time to time
prescribe. Consultant shall report directly to the President and
shall provide his or her services in accordance with the
instructions of the President, and with such reasonable instructions
given to him by any other officer of the Company.
c. Consultant shall be paid according to Exhibit A, exclusive of travel
time, for time actually spent performing Consultant's duties under
this Agreement. In addition, the Company shall reimburse Consultant
for reasonable long distance travel (transportation, lodging and
meals) and telephone expenses Consultant is required to incur in
providing the Services. All long-distance travel and lodging will be
coach class or equivalent and must be authorized by the Company in
advance. The foregoing fees and expense reimbursements are
Consultant's sole compensation for rendering Services to the
Company.
d. All Proprietary Information of the Company and all title, patents,
patent rights, copyrights, mask work rights, trade secret rights,
and other intellectual property and rights whatsoever (collectively
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Consulting Services Agreement Page 1 May 1, 2001
"Rights") in connection therewith shall be the sole property of the
Company. Consultant hereby assigns to the company any Rights
Consultant may have or acquire in such Proprietary Information. At
all times, both during the term of this Agreement and after its
termination, Consultant will keep in confidence and trust and will
not use or disclose any Proprietary Information without the prior
written consent of an officer of the Company. Consultant
acknowledges that any disclosure or unauthorized use of Proprietary
Information will constitute a material breach of this Agreement and
cause substantial harm to the Company for which damages would not be
a fully adequate remedy, and, therefore, in the event of any such
breach, in addition to other available remedies, the Company shall
have the right to obtain injunctive relief.
e. All company Materials shall be the sole property of the Company.
Consultant agrees that during the term of this Agreement, Consultant
will not remove any proprietary company materials from the business
premises of the company or deliver any Company Materials to any
person or entity outside the Company. Consultant further agrees
that, immediately upon the Company's request and in any event upon
completion of the Services, Consultant shall deliver to the Company
all Company Materials, any document or media which contains Results,
apparatus, equipment and other physical property or any reproduction
of such property, excepting only Consultant's copy of this
Agreement. At all times before or after completion of the Services,
the Company shall have the right to examine the Results and any
materials relating thereto to ensure Consultant's compliance with
the provisions of this Agreement.
f. Consultant will promptly disclose in writing to the President of the
Company, or to any persons designated by the Company, all
"Inventions", which includes all improvements, inventions, designs,
formulas, works of authorship, trade secrets, technology, mask
works, circuits, layouts, algorithms, computer programs, ideas,
processes, techniques, know-how and data, whether or not patentable,
made or conceived or reduced to practice or developed by Consultant,
either alone or jointly with others, during the term of this
Agreement in connection with the Services or which relate to any
Proprietary Information. Consultant will also disclose to the
President of the Company all things that would be Inventions if made
during the term of this Agreement, conceived, reduced to practice,
or developed by Consultant within six (6) months of the termination
of this Agreement which relate to any Proprietary Information or the
subject matter of the Services. Such disclosures shall be received
by the Company in confidence (to the extent they are not assigned in
(g) below) and do not extend the assignment made in Section (g)
below. Consultant will not disclose Inventions to any person outside
the Company unless requested to do so by management personnel of the
Company.
g. Consultant agrees that all Inventions which Consultant makes,
conceives, reduces to practice or develops (in whole or in part,
either alone or jointly with others) during the term of this
Agreement in connection with the Services or which relate to any
Proprietary Information shall be the sole property of the Company.
Consultant agrees to assign and hereby assigns to the Company all
Rights to any such Inventions. The Company shall be the sole owner
of all Rights in connection therewith. No assignments in this
Agreement shall extend to inventions, the assignment of which
Consultant proves would be prohibited by Section 2870 of the Labor
Code (a copy of which is attached as Exhibit B), were Consultant an
employee of the Company.
h. Any assignment of copyright thereunder includes all rights of
paternity, integrity, disclosure and withdrawal and any other rights
that may be known as or referred to as "moral rights" (collectively
"Moral Rights"). To the extent such Moral Rights cannot be assigned
under applicable law and to the extent the following is allowed by
the laws in the various countries where Moral Rights exist,
Consultant hereby waives such Moral Rights and consents to any
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Consulting Services Agreement Page 2 May 1, 2001
action of the Company that would violate such Moral Rights in the
absence of such consent. Consultant will confirm any such waivers
and consents from time to time as requested by the company.
i. During the term of this Agreement and for one (1) year thereafter,
Consultant will not encourage or solicit any employee or consultant
of the company to leave the Company for any reason.
j. Consultant agrees that during the term of this Agreement, Consultant
will not engage in any employment, business, or activity that is in
any way competitive with the business or proposed business of the
company, and Consultant will not assist any other person or
organization in competing with the Company or in preparing to engage
in competition with the business or proposed business of the
Company.
k. Consultant represents that performance of all the terms of this
Agreement will not breach any agreement to keep in confidence
proprietary information acquired by Consultant in confidence or in
trust prior to the execution of this Agreement. Consultant has not
entered into, and Consultant agrees not to enter into, any agreement
either written or oral that conflicts or might conflict with
Consultant's performances of the Services under this Agreement.
4. CONSULTANT agrees that this Agreement may be terminated by either the
Company or the CONSULTANT at any time, for any reason, with or without
cause, by giving 90 days written notice to the other party; termination
to be effective 90 days from the other party's receipt of notice. The
term for "cause" shall mean (i) the failure by CONSULTANT to perform any
of his duties or obligations hereunder, which failure shall have
continued for at least thirty (30) days after notice of such failure
shall have been given to CONSULTANT by the Company and provided, however,
that such failure shall be reasonably within the control of the
CONSULTANT; (ii) CONSULTANT's conviction of, guilty plea or plea of nolo
contendere concerning any felony; (iii) any act of fraud, embezzlement,
theft or gross malfeasance on the part of CONSULTANT with respect to the
Company or any of its assets; (iv) any of the representations and
warranties made by CONSULTANT herein shall prove to have been materially
false or misleading as of the time made; or
5. Consultant is an independent contractor and is solely responsible for all
taxes, withholdings, and other similar statutory obligations, including,
but not limited to, Workers' Compensation Insurance; and Consultant
agrees to defend, indemnify and hold Company harmless from any and all
claims made by any entity on account of an alleged failure by Consultant
to satisfy any such tax or withholding obligations.
6. Consultant has no authority to act on behalf of or to enter into any
contract, incur any liability or make any representation on behalf of the
Company.
7. Consultant's performance under this Agreement shall be conducted with due
diligence and in full compliance with the highest professional standards
of practice in the industry. Consultant shall comply with all applicable
laws and Company safety rules in the course of performing the services.
If Consultant's work requires a license, Consultant has obtained that
license and the license is in full force and effect.
8. Consultant agrees all obligations under paragraphs 3(d) through 3(i) and
paragraphs 3(k) and (n), 5 and 8 of this Agreement continue in effect
after termination of this Agreement, and the Company is entitled to
communicate Consultant's obligations under this Agreement to any future
client or potential client of Consultant.
9. Consultant agrees that any dispute in the meaning, effect or validity of
this Agreement shall be resolved in accordance with the laws of the State
of California without regard to the conflict of laws provisions thereof.
Consultant further agrees that if one or more provisions of this
Agreement are held to be illegal or unenforceable under applicable
California law, such illegal or unenforceable portion(s) shall be limited
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Consulting Services Agreement Page 3 May 1, 2001
or excluded from this Agreement to the minimum extent required and the
balance of the Agreement shall be interpreted as if such portion(s) were
so limited or excluded and shall be enforceable in accordance with its
terms.
10. This Agreement shall be binding upon Consultant, and inure to the benefit
of, the parties hereto and their respective heirs, successors, assigns,
and personal representatives; provided, however, that it shall not be
assignable by Consultant.
11. This Agreement contains the entire understanding of the parties regarding
its subject matter and can only be modified by a subsequent written
agreement executed by the President of the Company.
12. All notices required or given herewith shall be addressed to the Company
or Consultant at the designated addresses shown below by registered mail,
special delivery, or by certified courier service:
A. TO COMPANY: B. TO CONSULTANT:
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Medix Resources, Inc XXXXX & ASSOCIATES, LLC
Attn: Xxxxxx Xxxxx, CEO 0000 00xx Xxxxxx, 0xx Xxxxx
000 Xxxxxxxxx Xxx. #0000 Xxxxxxxx, XX 00000
Xxx Xxxx, XX 00000
14. If any action at law or in equity is necessary to enforce or interpret
the terms of this Agreement, the prevailing party shall be entitled to
reasonable attorneys' fees, costs and necessary disbursement, in addition
to any other relief to which the party may be entitled.
ACCEPTED AND AGREED TO: ACCEPTED AND AGREED TO:
MEDIX RESOURCES, INC. XXXXX & ASSOCIATES, LLC
By:_________________________ By:_________________________
Xxxxxx Xxxxx Xxxxxxxx Xxxxx
Title: CEO Title:
Date:_______________________ Date:_______________________
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Consulting Services Agreement Page 4 May 1, 2001
EXHIBIT A
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DUTIES OF CONSULTANT
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INCLUDES, BUT IS NOT LIMITED TO:
Perform financial public relations including, but not limited to, developing
Company relationships with the market makers, analysts, and the general
financial community.
COMPENSATION:
1.) $110,600
2.) 276,500 warrants to purchase Medix Resources common stock with an
exercise price of $0.50 and an expiration date of July 1, 2008.
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Consulting Services Agreement Page 5 May 1, 2001
EXHIBIT B
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LABOR CODE
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Section 2870. Application of provision providing that employee shall assign
or offer to assign rights in invention to employer.
(a) Any provision in an employment agreement which provides that an employee
shall assign, or offer to assign, any of his or her rights in an
invention to his or her employer shall not apply to an invention that the
employee developed entirely on his or her own time without using the
employer's equipment, supplies, facilities, or trade secret information
except for these inventions that either:
(1) Relate at the time of conception or reduction to practice of the
invention to the employer's business, or actual or demonstrably
anticipated research or development of the employer.
(2) Result from any work performed by the employee for his employer.
(b) To the extent a provision in an employment agreement purports to require
an employee to assign an invention otherwise excluded from being required
to be assigned under subdivision (a), the provision is against the public
policy of this state and unenforceable.
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Consulting Services Agreement Page 6 May 1, 2001
CONSULTING SERVICES AGREEMENT AMENDMENT NO. 1
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Reference is made to that certain Consulting Services Agreement dated
October 1, 2002 (the "AGREEMENT"), between Medix Resources, Inc. (the "COMPANY")
and Xxxxx & Associates ("CONSULTANT"). The initial term of the Agreement ran
between October 1, 2002 and March 31, 2003 (the "INITIAL TERM"). The parties
wish to extend the Initial Term of the Agreement by one additional consecutive
six-month term ending on September 30, 2003 (the "FIRST ADDITIONAL TERM").
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereby agree as follows.
1. The compensation set forth in Exhibit A attached to the Agreement
as originally executed and delivered relates exclusively to the Initial Term.
The compensation for the First Additional Term shall be $100,000.
2. Except as expressly amended hereby, the Agreement is hereby
ratified and confirmed, and the Agreement as expressly amended hereby is hereby
ratified, confirmed and approved.
Dated: December 4, 2003
MEDIX RESOURCES, INC.
BY: _________________________
Name: Xxxxxx Xxxxx
Title: President
XXXXX & ASSOCIATES
By: _____________________
Name: Xxxxxxxx Xxxxx
Title: President
